Friday, December 21, 2007

According to the Commisssion's EUR-LEX database, some time this month the EU passed its 100,000th law. The search reveals that 100,206 pieces of secondary legislation have been passed since 1957. Thanks for that.

To put that into perspective, if you read a law every working day (it would probably take you a bit longer to do any meaningful research of course) then you could read up on them all within about 426 years.

But wait - there is good news. If you only look at those still in force there are "only" 24,657 laws to bone up on, which would take "just" 104 years to get up to speed with.

That said, the stock of EU laws in force has grown by and average of 1,793 over the last five years. So the pile would be growing all the time.

The Indie didn't like the patients passport much. Like us they thought the top up proposals were the wrong way to go about introducing choice into the NHS.

"The Conservatives have come up with a range of extreme solutions. They include the proposal that patients and parents should have passports which would give them the "power" to take their custom to a school or hospital of their choice. For those wealthy enough to attend a private hospital, taxpayers would make a substantial contribution. This is a perverse form of targeting: increasing public expenditure on the most affluent."

"The Tory solution, however, looks suspiciously like a subsidy for wealthier patients. Their "passport" policy (rather hastily renamed "right to choose" after confused voters wondered if they had to go abroad to benefit) offers to refund part of the cost of private operations. It is right to try to use the private sector to help reform the public sector. But this assists only those who can afford to pay to go private, while doing little to help the less well-off or to confront the inherent problems of a sclerotic NHS."

----> But now add the magic euro-ingredient... and lo - a sudden change of heart:

"Another development is news of a draft initiative from the European Commission to open up the European health system so that citizens can access services in other member states if it is quicker than in their home country. This is no panacea for the ills of our own health service. But it is certainly good news for those patients presently at the mercy of a woefully inefficient and unresponsive NHS. And the competition should be good for the NHS itself in the long-term.[...] They are also gearing up to challenge the complacency of our monolithic NHS and offering British patients greater freedom of choice in healthcare. So much for the stereotype of useless Brussels bureaucrats who do nothing but think up ways to make life more difficult for us."

Wednesday, December 19, 2007

So - the Scottish Parliament has tonight voted for a referendum on the revived Constitutional Treaty.

SNP, Green and Conservative MSPs voted for the referendum, while the Liberal Democrats voted against. Labour MSPs voted for an amendment opposing a referendum but then abstained in the final vote.

It’s a good propaganda coup - and nice that the Parliament reflects the view of eight out of ten Scots that there should be a referendum.

However, the parties that voted for a referendum didn't do the one thing that would have made a real difference - vote for a referendum in Scotland - which the Parliament can actually call. That would have put Brown under massive pressure... that said, various recent events seem to be putting Brown under rather a lot of pressure anyway.

• The Charter of Fundamental Rights will not change the rights of asylum seekers or refugees to take their cases to the European Court of Justice (in Luxembourg, not Strasbourg). They only have existing rights where we have already opted in to EU law. Last year only ten cases were referred to the ECJ from UK courts.

• The Treaty will allow courts to make references for preliminary rulings to the European Court of Justice in cases concerning EU law on asylum. Currently such references can only be made by the House of Lords. References are about points of EU law - for example interpretation of EU rules. It does not mean the ECJ deciding whether people should stay or go. That will always be for national courts.

• And clarifying points of law with the ECJ quickly is strongly in the UK interest. It means we can decide on cases, and deal with the asylum seeker faster than if we wait for the case to get to the House of Lords, and then the ECJ, as happens now. So this should speed up the processing of asylum claims - without extending the ECJ's powers.

• This is only relevant to the UK in relation to EU measures we have opted into. Where we do not opt in to a measure, ECJ jurisdiction will not apply. And we have preserved an across-the-board right to choose whether or not to opt in. We can already choose not to participate in EU asylum proposals, and we will keep that right to choose under the Treaty. However, all Member States agree that working together improves our asylum systems. European co-operation can substantially help to stop the problems of "asylum shopping".

• There were quotes in one of today's papers from "EU Treaty Rules" (sic - in fact articles from the Charter of Fundamental Rights). These merely cite existing rights which, in some cases, the UK has been committed to since well before its EU membership (e.g. the Geneva Convention of 1951 and the New York Protocol of 1967). It is therefore not true to suggest that these provisions provide any new rights or competences for the EU.

• What is more, the UK protocol to the Charter puts beyond doubt that it cannot be used, either in the European Court or the UK national courts, to create any greater rights than already exist in UK or EU law or to strike down any UK laws.

xxxxx xxxxHead of Europe Team and Press Officer for the Minister for Europe Press Office Foreign and Commonwealth Office

What we say

This is a typical FCO attempt to throw up a load of dust to distract from the significant changes that are being proposed here.

Basically there are two very significant things re migration and asylum in the revived Constitution.

1) The fact that the ECJ gets full jurisdiction over third pillar issues for all member states (previously it was optional and the UK chose not to give the Court these powers).

2) Various rights set out in the Charter which might make a difference in asylum / immigration cases.

Regarding the first point, what is is particularly hypocritical is that the Government themselves raised several of the same concerns they are now trying to rebut back when they were still opposed to these proposals.

In terms of the expanded jurisdiction of the Court, they were concerned that it would lead to a lot more requests for rulings, which (given that the ECJ takes 20.4 months on average to respond) could really gum up the system.

At the end of last year when the same proposal was mooted (via the use of the passerelle) Peter Hain said: “There is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity of further complicating our existing asylum and immigration processes.”

In a letter dated 12 December 2006 the minister responsible (Joan Ryan) said that the Government "recognises the difficulties in accurately estimating the potential numbers of cases that could be involved, especially because new Community laws under Title IV will only come into effect over the next year".

The Government also argued that "the Government is concerned that allowing all courts to refer cases for preliminary rulings could have an adverse impact on the speed of decision-making at the ECJ [NB the exact opposite of what they are now saying] and consequently on the length of time it takes to resolve domestic cases. Implementation of the proposal as it stands could result in significant numbers of referrals from lower courts. We recognise that even a relatively modest increase in referrals in each Member State could create large backlogs of cases at the ECJ and consequential delays in domestic decision-making, especially if similar domestic cases were stayed pending an ECJ preliminary ruling."

In other words, as well the individual cases being thrown up to the ECJ, these would affect other people's cases if they touched on similar points of law. Meanwhile people will be waiting on benefits, unable to work, or even in custody.

In fairness to the Government they did try to amend the Constitution to answer these concerns, but they were not successful. Hain pointed out that "The United Kingdom is concerned that there would be a much greater number of preliminary rulings in asylum and immigration cases in particular, which the Court of Justice is not equipped to manage, if it was open to any court or tribunal to refer a case."

Regarding the Charter, the Government make two points. Firstly they say it "merely cites existing rights" and secondly they say that the UK protocol means that it will not be used by the Court "to create any greater rights than already exist in UK or EU law."

On the first point, the Charter clearly does not just cite existing rights. The UK Government would not have been trying to stop it from getting legal force for the last seven years if it didn't change anything.

A quick look at the text of explanations (drawn up at the insistence of the UK by the Praesidium of the European Convention) makes it clear that these rights are not just copies of those found in other agreements. Even where there is overlap, the rights in the Charter are often wider, and we are only likely to discover how much wider after a series of court cases.

Take just one example at random - Article 19.2 of the Charter: "No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

Now that all sounds fair enough - though of course it is just stating the core problem in the difficult business of deciding asylum cases.

According to the text of explanations it is not just a copy of an existing UK agreement but instead "incorporates the relevant case law from the European Court of Human Rights regarding article 3 of the ECHR". To what extent it widens or could be used to widen that case law is one for the lawyers of the future.

But it is certainly not just "copying" an existing text to which the UK is a signatory. Actually the original article 3 ECHR just says "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." There is nothing there, for example, about not deporting people to a country with the death penalty.

The problem is that trying to "consolidate" case law into a few words of primary legislation or treaty law can easily then lead to further rounds of case law "building on" the consolidated, paraphrased text.

The point about the UK protocol is just question begging: The Court should not use it to create "greater rights than in UK" or EU law. (our underlining). But the whole point is that it will be up to the ECJ to decide what rights "exist" in UK or EU law.

Remember that this is a court which has a well established track record of "discovering" new rights and powers for the EU. For example the "rights" which allowed Learco Chindamo to stay in the UK were based on the free movement directive, but this was itself based on a series of rulings from the ECJ.

Some would say, well, we can trust the Court to behave sensibly. But can we? Remember this is the Court which "discovered" that the Commission's has the power to propose some criminal laws by majority vote, despite the opposition of 18 member states.

In the end handing over powers to the Court over these controversial areas raises the problem that if you don’t like what it decides there is no comeback. There are good reasons why the UK and other member states did not agree to do this in the Maastricht treaty, and there are good reasons not to do it now.

Wednesday, December 12, 2007

Interesting study of the revived Constitution / treaty out today from a group of Brussels think tanks. One thing we hadn't seen before is this idea:

"It is currently expected that the main political parties at European level will designate their candidate for the presidency of the Commission in the campaign prior to the next elections to the European Parliament in 2009. The personality of the candidate could presumably become a significant element in the political debate."

A likely story. Our bet is that it will be three people who are virtualy unknown across the EU. We can't help thinking that they will all have to come from small countries...

This story is a a bit like the previous federalist hope that directly electing the European Parliament would lead to a huge surge in euro-feeling. In fact turnout has fallen in every election since the first one in 1979.

When the (virtual) "European Political Parties" start putting up their "presidential candidates" in '09 it will be interesting to see what happens when federalist ideas collide with reality.

Tuesday, December 11, 2007

Yup, if Broon wanted to give people an excuse to say that he dithers and is cowardly he couldn't have done it much better than by... dithering about whether to go the Lisbon summit then opting for a cack compromise.

He plans to go to the summit but then turn up late and miss the public signing ceremony. Then he can sign the treaty secretly after lunch.

Nice one. Genius. The entire UK media will now be trying to get the "money shot" of Brown signing the treaty. It seems to be going down fairly badly both in the media and in Downing Street. According to Ben Brogan the PM was surprised to find that on his return from Afghanistan the main topic of interest in the lobby was his jaunt to Lisbon. Doh.

Thursday, December 06, 2007

France set itself on collision course with Brussels yesterday as it announced green taxes on gas-guzzling cars and a state-funded discount for vehicles that emit small quantities of carbon dioxide.

Under the scheme, which may fall foul of European Union competition law, a tax of up to €2,600 (£1,900) will be slapped on 4x4s and high-powered sports cars, from next month. Purchasers of small cars will receive a government payment of up to €1,000 under the plan to curb greenhouse gas emissions in France.

“We are the first Western country to give a bonus to virtuous products,” Jean-Louis Borloo, the Ecology Minister, said.

The move, dubbed the ecological no-claims bonus, was welcomed by environmentalists but is certain to anger German manufacturers, such as Mercedes and BMW, which will be hit by the new taxes. They suspect President Sarkozy’s Government of using ecology as a pretext for a programme to favour Renault, Peugeot and Citroën, the French carmakers, which tend to produce smaller vehicles.

The one-off tax will be €200 for cars emitting between 161g and 165g of CO2 per kilometre, such as the Opel Zafira; €750 for 166g to 200g, such as the BMW 3 Series; €1,600 for 201g to 250g, such as the Mercedes Class E; and €2,600 for more than 251g, such as the Volkswagen Touareg.

The bonus will be €200 for cars emitting between 121g and 130g, such as the Renault Mégane; €700 for 101g to 120g, such as the Renault Clio; and €1,000 for less than 101g, such as the Fiat 500.

There will be neither a tax nor a bonus for cars whose emissions are between 131g and 160g.

In a further move designed to take older vehicles off the roads, drivers will be able to claim a €300 payment from the State if they send a car at least 15 years old to the scrapyard and replace it with a small, environmentally friendly one.

A study by the French Automobile Observatory said that the move could generate 110,000 new car sales next year, boosting a market stagnating at an annual total of two million, compared with 2.4 million in Britain.

Paris said that the scheme would have no impact on public finances because the discounts would be funded by the new taxes. About 25 per cent of new vehicles fall into a category that will now be taxed – about 1 per cent at the highest rate – and about 30 per cent will be eligible for a payout, according to the Transport Ministry.

Christian Gerondeau, the chairman of the French Federation of Automobile Clubs, said: “If all the money taken off people whose cars have big engines goes to those whose cars have small engines, then we can admit that this is a step in the right direction.”

Michel Dubromel, of France Nature Environment, a federation of 3,000 green associations, said that the Government had reneged on initial pledges. “We recognise the importance of the initiative, but this is a step back from what was agreed.”

However, the French press said that the fiercest opposition could come from Brussels amid fears that the scheme could distort competition.